<PAGE> 1
As filed with the Securities and Exchange Commission on November 11, 1997
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
DIAMOND MULTIMEDIA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0390654
(State or other jurisdiction of(I.R.S. Employer
incorporation or organization)Identification Number)
2880 JUNCTION AVENUE
SAN JOSE, CALIFORNIA 95134-1922
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
BINAR GRAPHICS, INC. 1993 STOCK OPTION PLAN
OFFICER'S OPTIONS
(Full title of the plans)
----------------------
WILLIAM J. SCHROEDER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DIAMOND MULTIMEDIA SYSTEMS, INC.
2880 JUNCTION AVENUE
SAN JOSE, CALIFORNIA 95134-1922
(408) 325-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copy to:
HOWARD S. ZEPRUN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (2) FEE (3)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value
- - to be issued under Binar
Graphics, Inc. 1993
Stock Option Plan 373,333 $ 0.10 $ 37,333.30 $ 11.31
- - Officer's Options 280,000 $ 9.75 $2,730,000.00 $ 827.27
Total $2,767,333.30 $ 838.58
--------
================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) of Regulation C solely for the
purpose of calculating the registration fee.
(2) The proposed maximum aggregate offering price is computed based upon the
exercise price of each outstanding option under the Binar Graphics, Inc.
1993 Stock Option Plan (the "Plan"). The weighted average exercise price of
the 373,333 shares subject to outstanding option under the Plan is $0.10.
(3) Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "one
thirty-third of one per centum of the maximum aggregate price at which such
securities are proposed to be offered."
<PAGE> 2
DIAMOND MULTIMEDIA SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") by the Registrant:
1. The contents of the Registration Statement on Form S-8 file number 333-37855
filed by the Company with the Securities and Exchange Commission on October
14, 1997.
2. The Company's Annual Report on Form 10-K filed with the SEC for the fiscal
year ended December 31, 1996.
3. The Company's Quarterly Report on Form 10-Q for the quarters ended March 31,
1997 and June 30, 1997, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
4. The description of Registrant's Common Stock contained in the Registrant's
Registration Statement on Form 8-A dated February 10, 1995, filed with the
Securities and Exchange Commission pursuant to Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of updating
such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of shares of Common Stock offered hereby will
be passed upon for the Registrant by Wilson Sonsini Goodrich & Rosati,
Professional Corporation ("WSGR"), Palo Alto, California. Jeffrey D. Saper, a
member of WSGR, is a director and Secretary of the Registrant. As of the date of
this Form S-8 Registration Statement, Mr. Saper beneficially owned 19,642 shares
of Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporations Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Act. The Registrant's
Bylaws provides for the mandatory indemnification of its directors and officers
and permissible indemnification of employees and other agents to the maximum
extent permitted by Delaware General Corporation Law. Registrant has entered
into an indemnification agreement with each of its officers and directors which
provide the Registrant's officers and directors with indemnification to the
maximum extent permitted by the Delaware General Corporation Law. In addition,
the Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for a
breach of the directors' fiduciary duty as a director to Registrant and its
stockholders, provided that such liability does not arise from certain
proscribed conduct. Registrant also currently maintains officer and director
liability insurance.
-2-
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
Exhibit
Number Description of Document
- ------ ----------------------------------------------------------------------
5.1 Opinion of Counsel as to legality of securities being registered.
10.4 1993 Stock Option Plan of Binar Graphics, Inc.
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Registrant's Certificate of Incorporation, Bylaws,
indemnification agreements or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
-3-
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on this 11th day of
November, 1997.
DIAMOND MULTIMEDIA SYSTEMS, INC.
By: /s/ WILLIAM J. SCHROEDER
-------------------------------------------
William J. Schroeder,
President and Chief Executive Officer
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William J. Schroeder and James M. Walker
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his or her substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- --------------------------------------------------------------------------------
/s/ WILLIAM J. SCHROEDER Director, Chief Executive November 11, 1997
- ----------------------------- Officer and President
William J. Schroeder (Principal Executive Officer)
/s/ JAMES M. WALKER Chief Financial Officer November 11, 1997
- ----------------------------- (Principal Financial
James M. Walker Officer)
/s/ CHONG-MOON LEE Chairman of the Board November 11, 1997
- -----------------------------
Chong-Moon Lee
/s/ JEFFREY T. CHAMBERS Director November 11, 1997
- -----------------------------
Jeffrey T. Chambers
/s/ BRUCE C. EDWARDS Director November 11, 1997
- -----------------------------
Bruce C. Edwards
/s/ WALTER G. KORTSCHAK Director November 11, 1997
- -----------------------------
Walter G. Kortschak
/s/ GREGORIO REYES Director November 11, 1997
- -----------------------------
Gregorio Reyes
/s/ JEFFREY D. SAPER Director November 11, 1997
- -----------------------------
Jeffrey D. Saper
<PAGE> 1
EXHIBIT 5.1
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone (650) 493-9300 Facsimile (650) 493-6811
November 11, 1997
Diamond Multimedia Systems, Inc.
2880 Junction Avenue
San Jose, CA 95134-1922
Re: Registration Statement on Form S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about November 7, 1997 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 373,333 shares of your Common Stock under
the 1993 Stock Option Plan and 280,000 shares of the Company's Common Stock
reserved for issuance under an Officer's Grant. Such shares of Common Stock are
referred to herein as the "Shares," and such Officer's Grant and plan are
referred to herein as the "Plans". As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each purchase under the
Plans, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH &ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
EXHIBIT 10.4
BINAR GRAPHICS, INC.
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
As Adopted Effective January 15, 1993
Amended September 29, 1994
Amended December 1, 1996
1. Purpose. The purpose of the BINAR GRAPHICS, INC. INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN (the "Plan") is to grant to selected employees of
Binar Graphics, Inc., a California corporation (the "Company") and its
subsidiaries and affiliates, a favorable opportunity to acquire Common Stock of
the Company, thereby encouraging such persons to accept or continue their
relationships with the company; increasing the interest of such persons in the
Company's welfare through participation in the growth and value of the Common
Stock; and furnishing such persons with an incentive to improve operations and
increase profits of the Company.
To accomplish the foregoing objectives, this Plan provides a means
whereby employees may receive options to purchase Common Stock. options granted
under this Plan will be either nonstatutory stock options or incentive stock
options.
2. Administration. The Plan shall be administered by the Board of
Directors of the Company, or, in the discretion of the Board, by a committee
(the Board and the Committee shall be jointly referred to hereafter as the
"Administrator") of not less than two members of the Board each of whom shall
not at any time within one year prior to his service as an administrator of the
Plan have received a grant or award of equity securities pursuant to the Plan or
any other plan of the Company or any of its affiliates. Subject to the
provisions of the Plan, the Administrator shall have the sole authority, in its
discretion:
(a) to determine to which of the eligible individuals, and
the time or times at which, options to purchase Common Stock of the Company
shall be granted;
(b) to determine the number of shares of Common Stock to be
subject to options granted to each eligible individual;
(c) to determine the price to be paid for the shares of
Common Stock upon the exercise of each option;
(d) to determine the term and the exercise schedule of each
option;
(e) to determine the terms and conditions of each stock
option agreement(which need not be identical) entered into between the Company
and any eligible individual to whom the Administrator has granted an option;
<PAGE> 2
(f) to interpret the Plan;
(g) to accelerate the exercise date or schedule with
respect to any option granted under the Plan or, with the consent of the holder
thereof, to modify or amend any such option; and
(h) to make all determinations deemed necessary or
advisable for the administration of the Plan.
3. Eligibility. Every individual who at the date of grant is an
employee of the Company or of any parent or subsidiary of the Company (as
defined in subsection 5.1(c) below) is eligible to receive incentive stock
options and/or nonstatutory stock options to purchase Common Stock under this
Plan. The term "employee" includes an officer or director who is an employee of
the Company or a parent or subsidiary of it, as well as a non-officer,
non-director employee of the Company or a parent or subsidiary of it.
4. Common Stock Subject to Plan.
(a) There shall be reserved for issue upon the exercise of
options granted under the Plan seven hundred thousand (700,000) shares of Common
Stock, subject to adjustment as provided in Section 7 hereof. If an option
granted under the Plan shall expire or terminate for any reason without having
been exercised in full, the unpurchased shares subject thereto shall again be
available for the purposes of the Plan.
(b) Notwithstanding any other provisions of this Plan, the
aggregate number of shares of Common Stock subject to outstanding options
granted under this Plan, plus the aggregate number of shares issued upon the
exercise of all options granted under this Plan, shall never be permitted to
exceed the number of shares specified in the first sentence of subsection 4(a)
above.
5. Terms Of Options. Each option granted under the Plan shall be
evidenced by a stock option agreement between the individual to whom the option
is granted (the "Optionee") and the Company. Each such agreement shall designate
the option thereby granted as an incentive stock option, a nonstatutory stock
option or in part an incentive stock option and in part a nonstatutory stock
option. Each such agreement shall be subject to the terms and conditions set
forth in subsection 5.1, and to such other terms and conditions not inconsistent
herewith as the Administrator may deem appropriate in each case. Incentive stock
options shall be subject also to the terms and conditions set forth in
subsection 5.2.
5.1 Terms and Conditions to Which All Options Are Subject. All
options granted under this Plan shall be subject to the following terms and
conditions:
(a) Term of Options. The period or periods within which an
option may be exercised shall be determined by the Administrator at the time the
option is granted, but in no event shall such period extend beyond ten (10)
years from the date the option is granted in the
<PAGE> 3
case of an incentive stock option, or ten (10) years and one (1) week from the
date the option is granted in the case of a nonstatutory stock option.
(b) Exercise Price. The price to be paid for each share of
Common Stock upon the exercise of an option shall be determined by the
Administrator at the time the option is granted, but shall in no event be less
than eighty-five percent (85%) in the case of a nonstatutory stock option, and
one hundred percent (100%) in the case of an incentive stock option, of the fair
market value of a share of Common Stock on the date the option is granted. For
all purposes of this Plan, the fair market value of the Common Stock on any
particular date shall be the closing price on the trading day next preceding
that date on the principal securities exchange on which the Company's Common
Stock is listed, or, if such Common Stock is not then listed on any securities
exchange, then the fair market value of the Common Stock on such date shall be
the mean of the closing bid and asked prices as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") on
the trading day next preceding such date. In the event that the Company's Common
Stock is neither listed on a securities exchange nor quoted by NASDAQ, then the
Administrator shall determine the fair market value of the Company's Common
Stock on such date.
(c) More than Ten Percent Shareholders. No option shall be
granted to any individual who, at the time such option would be granted, owns
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of outstanding capital stock of the Company, or of any parent
corporation or subsidiary corporation of the Company, unless the exercise price
(as provided in subsection 5.1(b) hereof) is not less than one hundred percent
(100%) in the case of a nonstatutory stock option,, and one hundred ten percent
(110%) in the case of an incentive stock option, of the fair market value of the
Common Stock on the date the option is granted, and in the case of an incentive
stock option the period within which the option may be exercised (as provided in
subsection 5.1(a) hereof) does not exceed five (5) years from the date the
option is granted. As used in this Plan, the terms "parent corporation" and
"subsidiary corporation" shall have the meanings set forth in Sections 424(e)
and (f), respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). For purposes of this subsection 5.1(c), in determining stock ownership,
an Optionee shall be considered as owning the voting capital stock owned,
directly or indirectly, by or for his brothers and sisters, spouse, ancestors
and lineal descendants. Voting capital stock owned, directly or indirectly, by
or for a corporation, partnership, estate or trust shall be considered as being
owned proportionately by or for its shareholders, partners or beneficiaries, as
applicable. Common Stock with respect to which any such Optionee holds an option
shall not be counted. Additionally, for purposes of this subsection 5.1(c),
outstanding capital stock shall include all capital stock actually issued and
outstanding immediately after the grant of the option to the Optionee.
Outstanding capital stock shall not include capital stock authorized for issue
under outstanding options held by the Optionee or by any other person.
(d) Method of Payment for Common Stock. Payment for stock
purchased upon any exercise of an option granted under this Plan shall be made
in full in cash concurrently with such exercise, except that, if and to the
extent the instrument evidencing the option so provides and if the Company is
not then prohibited from purchasing or acquiring shares of such stock, such
payment may be made in whole or in part with shares of the same class of stock
as that then subject to the option, delivered in lieu of cash concurrently with
such exercise, the shares so
<PAGE> 4
delivered to be valued on the basis of the fair market value of the stock
(determined in a manner specified in the instrument evidencing the option) on
the day preceding the date of exercise.
(e) Nontransferability. All options shall be
nontransferable, except by will or the laws of descent and distribution, and
shall be exercisable during the lifetime of the Optionee only by the Optionee.
(f) Repurchase of Stock. If provided in the stock option
agreement, at the discretion of the Administrator, the stock to be delivered
pursuant to the exercise of any option granted under this Plan may be subject to
a right of repurchase in favor of the Company with respect to any Optionee whose
relationship with the Company is terminated. Such right of repurchase shall be
at the price paid therefor upon exercise of the option, and shall expire at such
time or times as set by the Administrator. Determination of the number of shares
subject to such right of repurchase shall be made as of the date the option's
relationship with the Company terminates.
(g) Withholding and Employment Taxes. At the time of
exercise of an option, the Optionee shall remit to the Company in cash the
amount of any and all applicable federal and state withholding and employment
taxes.
5.2 Additional Terms and Conditions to Which Incentive Stock
Options Are Subject. Options granted under this Plan which are designated as
incentive stock options shall be subject to the following additional terms and
conditions:
(a) Annual Limitation. To the extent that the aggregate
fair market value (determined as of the date an incentive stock option is
granted) of the stock with respect to which incentive stock options granted are
exercisable for the first time by an employee during any one (1) calendar year
(under this Plan and under all other incentive stock option plans of the Company
and of any parent or subsidiary corporation) exceeds One Hundred Thousand
Dollars ($100,000), such options shall be treated as options which are not
incentive stock options.
(b) Death. Upon the death of an employee, any incentive
stock option which such employee holds may be exercised, within such period
after the date of death as the Administrator shall prescribe in the stock option
agreement, by the employee's representative or by the person entitled thereto
under the employee's will or the laws of intestate succession.
(c) Disability. Upon the permanent and total disability of
an employee (as defined in Section 105(d)(4) of the Code), any incentive stock
option which the employee holds may be exercised by the employee within such
period after the date of termination of employment resulting from such
disability (not to exceed twelve (12) months) as the Administrator shall
prescribe in the stock option agreement. The option shall terminate upon the
expiration of such prescribed period, unless the employee dies prior thereto, in
which event the provisions of subsection 5.2(b) hereof shall apply.
(d) Retirement. Upon the voluntary retirement of an
employee at or after reaching sixty-five (65) years of age, an incentive stock
option may be exercised by such employee with respect to all or any portion of
the balance of the Common Stock subject thereto within such period after the
date of retirement (not to exceed three (3) months) as the Administrator
<PAGE> 5
shall prescribe in the stock option agreement. The option shall terminate upon
the expiration of such prescribed period,, unless the employee dies prior
thereto, in which event the provisions of subsection 5.2(b) hereof shall apply.
(e) Transfer to Related Corporation. In the event that an
employee leaves the employ of the Company to become an employee of any parent or
subsidiary corporation of the Company, or if the employee leaves the employ of
any such parent or subsidiary corporation to become an employee of the Company
or of another parent or subsidiary corporation, such employee shall be deemed to
continue as an employee of the Company for all purposes of this Plan.
(f) Other Severance. In the event an employee leaves the
employ of the Company for any reason other than as set forth in subsections (b)
through (e) , above, any incentive stock option which such employee holds may be
exercised by such employee with respect to all or any portion of the balance of
the Common Stock subject thereto within such period after the date of severance
(not to exceed three (3) months as the Administrator shall prescribe in the
stock option agreement.
(g) Disqualifying Dispositions. If Common Stock acquired by
exercise of an incentive stock option granted pursuant to this Plan is disposed
of within two (2) years from the date of grant of the option or within one (1)
year after the transfer of the Common Stock to the Optionee, the holder of the
Common Stock immediately prior to the disposition shall promptly notify the
Company in writing of the date and terms of the disposition and shall provide
such other information regarding the disposition as the Company may reasonably
require.
6. Stock Issuance and Rights as Shareholder. Notwithstanding any
other provisions of the Plan, no Optionee shall have any of the rights of a
shareholder (including the right to vote and receive dividends) of the Company,
by reason of the provisions of this Plan or any action taken hereunder, until
the date such Optionee, shall both have paid the exercise price for the Common
Stock and shall have been issued (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company) the
stock certificate evidencing such shares.
7. Adjustments Upon Changes in Capitalization or Merger.
(a) Subject to any required action by the Company's
shareholders, the number of shares of Common Stock covered by this Plan as
provided in Section 4, the number of shares covered by each outstanding option
granted hereunder and the exercise price thereof shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a subdivision or consolidation of such shares or the
payment of a stock dividend (but only on the Common Stock) or any other increase
or decrease in the number of such outstanding shares of Common Stock effected
without the receipt of consideration by the Company; provided, however, that the
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration."
(b) Subject to any required action by the Company's
shareholders, if the Company shall be the surviving corporation in any merger or
consolidation, each outstanding option
<PAGE> 6
shall pertain and apply to the securities to which a holder of the number of
shares subject to the option would have been entitled. A dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving corporation shall cause each outstanding option to terminate,
unless the surviving corporation in the case of a merger or consolidation
assumes outstanding options or replaces them with substitute options having
substantially similar terms and conditions.
(c) To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
(d) Except as hereinabove expressly provided in this
Section 7, no Optionee shall have any rights by reason of any subdivision or
consolidation of shares of the capital stock of any class or the payment of any
stock dividend or any other increase or decrease in the number of shares of any
class or by reason of any dissolution, liquidation, merger or consolidation or
spin-off of assets or stock of another corporation, and any issue by the Company
of shares of stock of any class or of securities convertible into shares of
stock of any class shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares subject to any option
granted hereunder.
(e) The grant of an option pursuant to this Plan shall not
affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
8. Securities Law Requirements.
(a) The Administrator may require an individual as a
condition of the grant and of the exercise of an option, to represent and
establish to the satisfaction of the Administrator that all shares of Common
Stock to be acquired upon the exercise of such option will be acquired for
investment and not for resale. The Administrator shall cause such legends to be
placed on certificates evidencing shares of Common Stock issued upon exercise of
an option as, in the opinion of the Company's counsel, may be required by
federal and applicable state securities laws.
(b) No shares of Common Stock shall be issued upon the
exercise of any option unless and until counsel for the Company determines that:
(i) the Company and the Optionee have satisfied all applicable requirements
under the Securities Act of 1933 and the Securities Exchange Act of 1934; (ii)
any applicable listing requirement of any stock exchange on which the Company's
Common Stock is listed has been satisfied; and (iii) all other applicable
provisions of state and federal law have been satisfied.
9. Financial Assistance. The Company is vested with authority
under this Plan to assist any employee to whom an option is granted hereunder
(including any consultant to, director or officer of the Company or any of its
subsidiaries who is also an employee) in the payment of the purchase price
payable on exercise of that option, by lending the amount of such purchase price
to
<PAGE> 7
such employee on such terms and at such rates of interest and upon such security
as shall have been authorized by or under authority of the Board.
10. Amendment. The Board may terminate the Plan or amend the Plan
from time to time in such respects as the Board may deem advisable, except that,
without the approval of the Company's shareholders in compliance with the
requirements of applicable law, no such revision or amendment shall:
(a) increase the number of shares of Common Stock reserved
under Section 4 hereof for issue under the Plan, except as provided in Section 7
hereof;
(b) change the class of persons eligible to participate in
the Plan under Section 3 hereof;
(c) extend the term of the Plan under Section 10 hereof; or
(d) amend this Section 10 to defeat its purpose.
11. Termination. The Plan shall terminate automatically on January
15, 2003, and may be terminated at any earlier date by the Board. No option
shall be granted hereunder after termination of the Plan,, but such termination
shall not affect the validity of any option then outstanding.
12. Time of Granting Options. The date of grant of an option
hereunder shall, for all purposes, be the date on which the Administrator makes
the determination granting such option.
13. Reservation of Shares. The Company, during the term of this
Plan, will at all times reserve and keep available such number of shares of its
Common Stock as shall be sufficient to satisfy the requirements of the Plan.
14. Effective Date. This Plan was adopted by the Board of Directors
of the Company on January 15, 1993, and shall be effective on said date,
provided the Plan is approved within twelve (12) months of said date by the
shareholders of the Company in accordance with the requirements of the Code and
the California Corporate Securities Laws. Options may be granted, but may not be
exercised, prior to the date of such shareholder approval.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Diamond Multimedia Systems, Inc. on Form S-8 for 373,333 shares of Common Stock
reserved for issuance under Binar Graphics, Inc. 1993 Stock Option Plan and
280,000 shares of Common Stock reserved for issuance under an Officer's Grant of
our report dated March 8, 1997, on our audits of the consolidated financial
statements and financial statement schedule of Diamond Multimedia Systems, Inc.
as of December 31, 1996, and 1995 and for the years ended December 31, 1996,
1995 and 1994, which report is included in the Annual Report on Form 10-K for
the year ended December 31, 1996.
/s/ Coopers & Lybrand L.L.P.
San Jose, California
November 11, 1997
